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Insight
On 16 January 2023, the National Education Union (NEU) confirmed its intention to strike.
The NEU has said it will hold strikes on:
The Department for Education’s (DfE) guidance ‘Handling strike action’ states that although “employees are not required to tell their employers whether they intend to take strike action, employers are able to ask staff in advance if they intend to strike.”
Although the DfE states that it is for each school to decide whether to close or remain open, the guidance also states that schools are expected “to take all reasonable steps to keep the school open for as many pupils as possible.”
Schools may ask non-striking teachers to cover classes, but teachers employed under the School Teachers’ Pay and Conditions Document can’t be required to provide cover. Cover supervisors, or teachers who are employed mainly to provide cover and are not striking, can be directed to provide cover during industrial action.
In maintained schools and some academies, classes must be taught by qualified teachers. However, some free schools and academies may be exempt from these requirements.
Support staff do not fall within the scope of the NEU’s strike action and thus could provide cover supervision or oversee alternative activities. Support staff may undertake ‘specified work’ under the direction and supervision of a qualified teacher if the headteacher is satisfied that they have the skills required.
Agency staff can now be used to provide cover during strike action following a change to the legislation last year.
The DfE’s guidance states that “A headteacher on strike should delegate their duties to another member of the leadership team. If the whole leadership team is on strike, the governing body or academy trust can approach another staff member to carry out the headteacher’s duties, for example, a senior teacher or a retired headteacher employed by the school.”
Schools must continue to maintain the minimum staffing requirements for nursery and infant classes, however, the DfE guidance points out that, “The infant class size limit does not apply to activities normally carried out in larger groups, for example, assemblies, sports and other structured or unstructured activities that the school may choose to provide on strike days.”
An employer can directly employ individuals to cover staff on strike subject to the usual safeguarding requirements. The DfE guidance states that “employers are advised to seek exemptions for schools road safety officers, school crossing patrols, and employees in residential special schools” and points out that schools may wish to negotiate other exemptions where striking could have adverse financial consequences for a member of staff.
Schools could also consider creative ways to pool resources. This could include seconding one teacher to provide cover at a different school and invoicing the receiving school for the teacher’s wages.
An employee is not entitled to be paid for a day that they are on strike. As such, schools may deduct a day’s pay from the usual salary. The deduction would usually amount to 1/365th of the annual salary for each day of strike action.
Although strike days do not break continuous service, they do not count towards it. This could have implications for redundancy if an employee falls short of a qualifying year’s service. Strike days do not count for “reckonable service purposes” within the Teachers’ Pension Scheme.
Where an employee is dismissed for participating in industrial action, this may be automatically unfair where certain conditions are met and maybe unfair anyway if the decision is unreasonable.
Case law suggests that UK legislation does not protect staff from suffering a detriment for having participated in industrial action, but this may be a breach of Article 11 of the European Convention on Human Rights, which guarantees the right to freedom of assembly and the right of workers to form and join trade unions for the protection of their interests. An employee may also be entitled to resign and claim constructive dismissal if a detriment is likely to damage the employment relationship.
Notice of a strike must be given at least fourteen days before starting. A valid notice must:
Where the employer operates the “check-off” system of deducting union dues from employees’ wages, the union need not include all the lists and figures above but must include such information as will enable the employer to collate those lists and figures.
The following categories of NEU members can strike: teachers in England state-funded schools; teachers in Wales state-funded schools; support staff in Wales state-funded schools; and teachers in sixth-form colleges in England.
Non-union members are entitled to join the strike and share the same rights as union members whilst striking. However, members of other unions cannot strike unless they have balloted to support the action. We are unaware of any other unions that have voted to strike.
Although a ballot was conducted for support staff who are members of the NEU, this failed to meet the threshold for action to be taken.
A link to the DfE’s guidance can be found here: Handling strikes action in schools: Guidance for school leaders, governing bodies and employers
Should you require any advice or support during the strikes, our specialist education employment lawyers will be able to assist.
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For further information or advice on the subjects discussed above, please contact our education employment law specialists on 01332 226 155 or fill in the form below.
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